IN THE SUPREME COURT OF C - horvitzlevy.com · 10/00 - SAELZER V. ADVANCED GROUP [AC] S085736 IN THE SUPREME COURT OF CALIFORNIA MARIANNE SAELZLER, Plaintiff and Respondent, vs. ADVANCED

10/00 - SAELZER V. ADVANCED GROUP [AC]

S085736IN THE

SUPREME COURT OF CALIFORNIA

MARIANNE SAELZLER,

Plaintiff and Respondent,

vs.

ADVANCED GROUP 400, et al.,

Defendants and Petitioners.

AFTER A DECISION BY THE COURT OF APPEALSECOND APPELLATE DISTRICT, DIVISION SEVEN

CASE NO. B125896

REQUEST FOR LEAVE TO FILE AMICI CURIAE BRIEFAND AMICI CURIAE BRIEF IN SUPPORT OF DEFENDANTS AND

PETITIONERS ADVANCED GROUP 400, ET AL.

HORVITZ & LEVY LLPFREDERIC D. COHEN (STATE BAR NO. 56755)

ANDREA M. GAUTHIER (STATE BAR NO. 158955)ORLY DEGANI (STATE BAR NO. 177741)15760 VENTURA BOULEVARD, 18TH FLOOR

ENCINO, CALIFORNIA 91436(818) 995-0800 • FAX (818) 995-3157

ATTORNEYS FOR AMICI CURIAETHE UNIVERSITY OF SOUTHERN CALIFORNIA, THE UNIVERSITY OF

CALIFORNIA, CALIFORNIA STATE UNIVERSITY, THE BOARD OF TRUSTEES OFTHE LELAND STANFORD JUNIOR UNIVERSITY, CALIFORNIA INSTITUTE OF

TECHNOLOGY, LOMA LINDA UNIVERSITY, PEPPERDINE UNIVERSITY, SUTTERHEALTH, STATE FARM GENERAL INSURANCE COMPANY, TRUCK INSURANCE

EXCHANGE, FIRE INSURANCE EXCHANGE, MID-CENTURY INSURANCECOMPANY, CIVIC PROPERTY AND CASUALTY COMPANY, EXACT PROPERTY

AND CASUALTY COMPANY, AND NEIGHBORHOOD SPIRIT PROPERTY ANDCASUALTY COMPANY

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TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

REQUEST FOR LEAVE TO FILE AMICI CURIAE BRIEF INSUPPORT OF DEFENDANTS AND PETITIONERS . . . . . . . . . . . . . A1

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

LEGAL DISCUSSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

I. SAELZLER’S NOVEL APPROACH TO PROVINGCAUSATION CONFLICTS WITH EXISTING CALIFORNIAAUTHORITY, INCLUDING PRIOR DECISIONS OF THISCOURT, AND WITH CASE LAW FROM OTHERJURISDICTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

A. Saelzler Directly Conflicts with Every Other Decision bythe California Courts of Appeal that Has Addressed theIssue of Causation in the Context of Landowner Liabilityfor Third-Party Crime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

B. Saelzler Conflicts with This Court’s Recent Decision inSharon P. v. Arman, Ltd. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

C. Saelzler Conflicts with Authority From OtherJurisdictions Concerning Proof of Causation in theLandowner Liability Context . . . . . . . . . . . . . . . . . . . . . . . . . 9

II. SAELZLER’S APPROACH TO PROVING CAUSATIONVIOLATES ESTABLISHED LEGAL PRINCIPLES ANDPOLICY CONSIDERATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

A. The “Common Sense” Premise that Security GenerallyReduces Crime Is Insufficient, by Itself, to Satisfy aPlaintiff’s Burden of Proof on the Issue of Causation . . . . . 12

B. An Expert’s Unsupported Hindsight Opinion About theDeterrent Effect of Recommended Security MeasuresCannot Create a Triable Issue of Fact on Causation . . . . . . 16

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C. There Is No Legitimate Basis For Shifting to DefendantLandowners the Burden to Disprove Causation . . . . . . . . . 17

D. Public Policy Demands that Plaintiffs in PremisesLiability Actions Based on Third-Party CrimeAffirmatively Demonstrate Causation . . . . . . . . . . . . . . . . . 23

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

REQUEST BY THE UNIVERSITY OF SOUTHERNCALIFORNIA, THE UNIVERSITY OF CALIFORNIA,CALIFORNIA STATE UNIVERSITY, THE BOARD OFTRUSTEES OF THE LELAND STANFORD JUNIORU N I V E R S I T Y ( S T A N FORD UNIVERSIT Y ) ,CALIFORNIA INSTITUTE OF TECHNOLOGY, LOMALINDA UNIVERSITY, PEPPERDINE UNIVERSITY,SUTTER HEALTH, STATE FARM GENERALINSURANCE COMPANY, TRUCK INSURANCEEXCHANGE, FIRE INSURANCE EXCHANGE, MID-CENTURY INSURANCE COMPANY, CIVIC PROPERTYAND CASUALTY COMPANY, EXACT PROPERTY ANDCASUALTY COMPANY, AND NEIGHBORHOODSPIRIT PROPERTY AND CASUALTY COMPANY, FORLEAVE TO FILE AMICI CURIAE BRIEF IN SUPPORTOF DEFENDANTS AND PETITIONERS

TO THE HONORABLE CHIEF JUSTICE AND THE HONORABLE

ASSOCIATE JUSTICES OF THE SUPREME COURT OF THE STATE OF

CALIFORNIA:

Pursuant to California Rules of Court, rule 14(b), the University of

Southern California, the University of California, California State University,

the Board of Trustees of the Leland Stanford Junior University (Stanford

University), California Institute of Technology, Loma Linda University, and

Pepperdine University (collectively, “the Universities”); Sutter Health, a

nonprofit organization of hospitals; and State Farm General Insurance

Company, Truck Insurance Exchange, Fire Insurance Exchange, Mid-Century

1/ This application and proposed brief are timely filed. On September 7,2000, this Court extended the time for filing the application and proposed briefto and including October 10, 2000.

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Insurance Company, Civic Property and Casualty Company, Exact Property

and Casualty Company, and Neighborhood Spirit Property and Casualty

Company (collectively, “the Insurance Carriers”) respectfully request

permission to file the attached brief as amici curiae in support of defendants

and petitioners Advanced Group 400, et al.1/

The University of Southern California (USC) is a private university

with a diverse student body, located near downtown Los Angeles. Its two

campuses, which include administrative facilities, classrooms, laboratories,

libraries, dormatories, hospital facilities, athletic fields, parking garages, and

park-like open spaces, are located on 186 acres of property. Over 28,000

students and countless members of the public have constant access to USC’s

facilities from early in the morning until late at night. USC was the defendant

in one of the leading landowner liability cases, Nola M. v. University of

Southern California (1993) 16 Cal.App.4th 421, the validity of which is at

issue here.

The University of California (UC) is a public university system that

includes nine university campuses located throughout California, in or near

Santa Cruz, San Francisco, Davis, Berkeley, Santa Barbara, Los Angeles,

Irvine, Riverside and San Diego. Approximately 178,410 students attend the

nine UC campuses, and approximately 150,640 employees work on the

campuses. The campuses contain a total of approximately 5,200 buildings,

most of which are regularly accessible to all UC’s students and employees, as

well as to the general public. In particular, the campus libraries are open to

the public, and members of the public regularly attend athletic events at the

many sporting facilities on the campuses. In addition, five of the UC

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campuses (San Francisco, Davis, Irvine, Los Angeles and San Diego) have

medical schools with hospitals that service the general public.

California State University (Cal State) is a public university system

composed of 23 campuses located throughout California. The 23 Cal State

campuses occupy a total of 17,819 acres of property consisting of classrooms,

laboratories, libraries, parking structures, gymnasiums, athletic fields,

administrative facilities, and open spaces. Approximately 360,000 students

and 20,000 faculty members have constant access to the Cal State campuses

throughout the day and into the night. The campuses also are open to the

general public.

Stanford University is a private university located in Silicon Valley on

over 8,000 acres of land in Santa Clara County and San Mateo County.

Stanford’s campus includes classrooms, laboratories, stadiums, athletic

facilities, utilities plants, administrative buildings, two hospitals, a church, an

art museum, a linear accelerator, student residences, faculty housing, lakes,

and thousands of acres of open space. The campus has more than 46 miles of

roads and is essentially open to the public. There are over 14,000 students at

Stanford and more than 9,000 faculty and staff.

California Institute of Technology(Caltech) is an independent, privately

supported university located in Pasadena, with approximately 900

undergraduate and 1,100 graduate students. Caltech’s campus encompasses

124 acres with some 40 laboratory and research buildings. Caltech also has

administrative, parking, and athletic facilities, classrooms, and student housing

for both undergraduate and graduate students. Caltech is a major presence in

a small community, and this presence includes maintaining an open campus

policy. However, at some point, liability concerns could become sufficiently

onerous as to affect Caltech’s ability to make its campus facilities available to

the public.

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Loma Linda University is a private university that enrolls more than

3,500 students in six schools emphasizing the health sciences. Loma Linda’s

campus consists of approximately 100 acres plus an additional 80 acres

occupied by the Loma Linda University Medical Center and its related

facilities. Besides administrative facilities, classrooms, laboratories, libraries,

dormatories, recreational facilities and open spaces, the Loma Linda campus

includes numerous clinics that provide health care to patients. The Loma

Linda medical institutions are the primary regional tertiary medical center for

inland Southern California with 880 patient beds, more than 5,500 employees,

and a medical staff in excess of 950. The institutions admit more than 35,000

inpatients each year and serve more than 750,000 outpatients. Countless

members of the public have 24-hour access to Loma Linda’s medical center

and day and evening access to the campus and its related facilities.

Pepperdine University is a private, nonprofit university located in

Malibu, California. Pepperdine’s campus rests on 830 acres and includes

administrative facilities, classrooms, athletic facilities, museums, theaters, and

housing for students, faculty and staff. More than 9,000 students, faculty and

staff have access to Pepperdine’s campus facilities. The general public also

frequently visits the campus to attend, among other things, athletic

competitions and theatrical, musical and other performances.

The Universities take significant measures to protect their campuses

against crime, including retaining highly trained security guards to patrol the

campuses 24 hours a day. Nonetheless, the Universities are acutely aware that

there is always the possibility random crime will occur on their property

because, unfortunately, “[a]bsolute safety is not an achievable goal,” especially

given the vast number of people who regularly come upon the university

campuses and use the Universities’ facilities. (Nola M. v. University of

Southern California, supra, 16 Cal.App.4th at p. 436.) The Universities are

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interested in assuring that they are not subjected to the new and potentially

limitless standard of liability for third-party crimes on their premises that the

majority opinion in this case sets forth.

Sutter Health is a nonprofit organization of hospitals with 28 hospitals

in Northern California, serving both rural and urban areas. Like the

Universities, Sutter Health’s hospitals go to great lengths to secure their

premises against crime. However, extensive public access to the hospital

facilities, which is crucial to effective health service, makes Sutter Health a

potential target of actions resulting from any expansion of the rules pertaining

to premises liability.

State Farm General Insurance Company (State Farm General) is a stock

company wholly owned by State Farm Mutual Automobile Insurance

Company, which does not issue shares to the public. State Farm General

provides general liability insurance coverage to over three million business

owners, office buildings, condominium and apartment complexes, churches,

and other commercial and private propertyowners throughout California. Any

and all of State Farm General’s insureds, and therefore State Farm General

itself, stand to be affected by any expansion of the rules governing landowner

liability for third-party crimes.

Truck Insurance Exchange, Fire Insurance Exchange, Mid-Century

Insurance Company, Civic Property and Casualty Company, Exact Property

and Casualty Company, and Neighborhood Spirit Property and Casualty

Company are independent insurance carriers that, for business promotional

purposes, operate, along with many other insurers, using the federally

registered servicemark “Farmers Insurance Group of Companies.” These

insurance carriers provide general liability insurance coverage to hundreds of

thousands of commercial and private property owners throughout California.

Truck Insurance Exchange provides liability insurance coverage to Advanced

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Group 400, one of the defendants in the instant action. Wholly apart from the

outcome of this case, Truck, like State Farm and the other insurance carriers

that use the servicemark “Farmers Insurance Group of Companies,” has a vital

interest in the rules that govern the liability of its insureds in all cases that arise

out of third-party criminal assaults.

Counsel for the Universities, Sutter Health, and the Insurance Carriers

have reviewed the briefs on the merits filed in this case and believe this Court

will benefit from additional briefing on the proof necessary to establish

causation in premises liability cases arising from third-party crime.

INTRODUCTION

The past years “have seen a proliferation of cases . . . in which

plaintiffs seek to impose liability on the owners or occupiers of land for

injuries resulting from the criminal conduct of some third party.” (Gregorian

v. National Convenience Stores, Inc. (1985) 174 Cal.App.3d 944, 947.) In

these cases, the criminals, who are unquestionably directly responsible for the

plaintiffs’ injuries (if not, as some would argue, exclusively so), often cannot

be found or are insolvent. In our litigious society, where individuals seek

financial compensation “for virtually every wrong, accident or inconvenience

that befalls [them],” the crime victims typically look to the “deep pockets” of

the owner of the property on which the crime occurred. (Sharp, Paying for the

Crimes of Others? Landowner Liability for Crimes on the Premises (1987) 29

S. Tex. L.Rev. 11, 16.)

This Court has recognized the need to place rational limits on

landowners’ exposure to liability for criminal acts perpetrated on their property

by others. In Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666,

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the Court acknowledged that, “[u]nfortunately, random, violent crime is

endemic in today’s society,” and “[i]t is difficult, if not impossible, to envision

any locale open to the public where the occurrence of violent crime seems

improbable.” (Id. at p. 678.) The Court also recognized that “‘[n]o one really

knows why people commit crime’” or what will deter them. (Id. at p. 679,

quoting 7735 Hollywood Blvd. Venture v. Superior Court (1981) 116

Cal.App.3d 901, 905.) In light of these realities, the Court reiterated the “well-

established policy in this state” that landowners are not insurers of the safety

of everyone who comes upon their property. (Id. at p. 679.)

More recently, in Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, this

Court cited with approval Nola M. v. University of Southern California (1993)

16 Cal.App.4th 421, and other, earlier Court of Appeal decisions that “rejected

claims of abstract negligence [by landowners pertaining to the absence of

security measures on their property] where no connection to the alleged

injuries was shown.” (Sharon P. v. Arman, Ltd., supra, 21 Cal.4th at pp. 1196-

1197.) Again emphasizing the need to rationally limit landowner liability for

others’ crimes, the Court confirmed the need for plaintiffs to show that

“proposed [security] measures would have been effective to protect against the

type of violent assault that occurred.” (Id. at p. 1196.)

The majority decision in Saelzler v. Advanced Group 400 (1999) 77

Cal.App.4th 1001, ignores these pronouncements by this Court, explicitly

rejects and declines to follow the Nola M. line of cases, and dramatically

expands the potential for landowner liability for third-party crime. According

to the Saelzler majority, whenever a plaintiff offers evidence that inadequate

security was provided on a landowner’s property (evidence which, of course,

can always be presented with the benefit of hindsight after a crime has

occurred), a presumption of causation arises based on the “common sense”

notion that security measures generally “reduce the probability crime will

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occur at locations enjoying these protections.” (Id. at pp. 1011, 1013-1014.)

The burden then shifts to the defendant landowner to demonstrate, if it can,

that the particular crime perpetrated against the plaintiff would have happened

even if the plaintiff’s proposed security precautions were in place. (Id. at p.

1014.) The court in Saelzler suggested the landlord rarely will succeed in

satisfying this burden if the criminal assailant is not available to testify. (Ibid.)

In departing so dramatically from existing law, the Saelzler majority

obviously was influenced by the facts of the case before it, which involved a

delivery person whose job required that she enter an apartment complex that

was rampant with violent crime and where, arguably, no indicia of security

existed, at least during the time of day when the attack against the plaintiff

occurred. (Saelzler v. Advanced Group 400, supra, 77 Cal.App.4th at pp.

1003-1005.) But the Saelzler decision has broad implications for all

landowners, including highly responsible ones like amici Universities and

Sutter Health, as well as the vast majority of property owners insured by amici

Insurance Carriers. Under Saelzler, even the most responsible landowners

could be held “vicariously” liable for the acts of criminals on their property,

regardless how many security measures they take. This follows because, in

hindsight, a plaintiff will virtually always be able to argue the defendant

property owner could have taken more or different steps to prevent the specific

crime that occurred. (See Sharon P. v. Arman, Ltd., supra, 21 Cal.4th at p.

1194 [“[t]he mere fact that a crime has occurred almost always allows one to

draw the conclusion, after the fact, that the premises were inherently

dangerous,” quoting Kaufman, When Crime Pays: Business Landlords’ Duty

to Protect Customers from Criminal Acts Committed on the Premises (1990)

31 S. Tex. L.Rev. 89, 112-113, fns. omitted].) There will always be a

“security expert” willing to offer such testimony. (See Noble v. Los Angeles

Dodgers, Inc. (1985) 168 Cal.App.3d 912, 916 [recognizing a troublesome

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“growth industry is developing consisting of experts who will advise and

testify as to what, in their opinion, constitutes ‘adequate security’”].)

The Saelzler majority opinion is a classic example of bad facts making

bad law. Its effect is to subject property owners generally to potentially

unlimited liability for third-party crime, and to make them the virtual insurers

of the safety of others on their property, contrary to “well-established policy

in this state.” (Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th at p.

679.) Accordingly, this Court should reverse Saelzler and reaffirm the

fundamental requirement that, to prevail in a premises liability action based on

third-party crime, a plaintiff must affirmatively demonstrate the “proposed

[security] measures would have been effective to protect against the type of

violent assault that occurred.” (Sharon P. v. Arman, Ltd., supra, 21 Cal.4th at

p. 1196.)

LEGAL DISCUSSION

I.

SAELZLER’S NOVEL APPROACH TO PROVING

CAUSATION CONFLICTS WITH EXISTING

CALIFORNIA AUTHORITY, INCLUDING PRIOR

DECISIONS OF THIS COURT, AND WITH CASE LAW

FROM OTHER JURISDICTIONS

A. Saelzler Directly Conflicts with Every Other Decision by the

California Courts of Appeal that Has Addressed the Issue of

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Causation in the Context of Landowner Liability for Third-

Party Crime

Prior to Saelzler, the seemingly settled test for causation in premises

liability cases arising from third-party crime was the rule enunciated in Nola

M. v. University of Southern California, supra, 16 Cal.App.4th 421. In broad

terms, Nola M. held that unless a plaintiff demonstrates that it is substantially

likely a third-party criminal assault would not have occurred had the defendant

landowner taken additional security precautions, the defendant is not the legal

cause of injuries sustained in such an attack. (Id. at pp. 435-439.)

Under Nola M., simply criticizing the defendant’s security measures by

offering expert opinion that additional measures – another guard, more lights,

fewer trees – would have made the property safer is not enough to get a case

to the jury, much less to prevail at trial. The plaintiff also must demonstrate

with specific facts that a substantial probability exists these additional

measures would have prevented the crime. (See id. at pp. 424, 435-439.) In

other words, the plaintiff must demonstrate a causal connection between the

absence of additional security measures and the criminal assault.

Nola M. based its conclusion on numerous other landowner liability

cases which all held liability cannot be premised on “abstract negligence,” i.e.,

negligence that has no demonstrable causal connection with the plaintiff’s

injuries. (Id. at pp. 429-436; see also, e.g., Noble v. Los Angeles Dodgers,

Inc., supra, 168 Cal.App.3d at p. 916 [“We understand the law still to require

that a plaintiff, in order to establish liability, must prove more than abstract

negligence unconnected to the injury” and are “unaware of any case in which

a judgment against the property owner has been affirmed solely on the basis

of a failure to provide an adequate deterrence to criminal conduct in general”];

Lopez v. McDonald’s Corp. (1987) 193 Cal.App.3d 495, 515-516 [“This case

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constitutes a classic example of plaintiffs establishing ‘abstract negligence’ in

that [defendant’s] security failed to conform with their expert’s notion of

adequacy . . ., without establishing any causal nexus between this failure and

the resulting injuries”]; Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th

472, 488 [negligence action against landlord “must be supported by evidence

establishing that it was more probable than not that, but for the landlord’s

negligence, the assault would not have occurred”]; accord Constance B. v.

State of California (1986) 178 Cal.App.3d 200; Thai v. Stang (1989) 214

Cal.App.3d 1264).

Without exception, these cases, including Nola M., rejected the notion

that a plaintiff can satisfy the burden to show causation by proffering

conclusory testimony from a security expert who opines generally, without

specific substantiation, that whatever security measures the defendant did not

have in place would have prevented the crime. (Leslie G. v. Perry &

Associates, supra, 43 Cal App.4th at p. 488 [“proof of causation cannot be

based on . . . an expert’s opinion based on inferences, speculation and

conjecture”]; Nola M. v. University of Southern California, supra, 16

Cal.App.4th at p. 435; Lopez v. McDonald’s Corp., supra, 193 Cal.App.3d at

p. 516; Noble v. Los Angeles Dodgers, Inc, supra, 168 Cal.App.3d at p. 917;

Constance B. v. State of California, supra, 178 Cal.App.3d at p. 211.)

Rather, these cases required plaintiffs to prove the element of causation

based on specific facts or “real evidence.” (Leslie G. v. Perry & Associates,

supra, 43 Cal.App.4th at p. 488; see also id. at p. 483 [“Since there is no

direct evidence that the rapist entered or departed through the broken gate (or

even that the broken gate was the only way he could have entered or departed),

Leslie cannot survive summary judgment simply because it is possible that he

might have entered through the broken gate,” emphasis in original]; Gregorian

v. National Convenience Stores, Inc., supra, 174 Cal.App.3d at p. 949

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[rejecting as “conclusionary” and “totally unsupported” plaintiff’s argument

that his attack would not have occurred had there been adequate lighting and

patrolling security guards on the premises]; 7735 Hollywood Blvd. Venture v.

Superior Court, supra, 116 Cal.App.3d at p. 903 [plaintiff cannot “construct

a bridge of causation” between landlord’s alleged negligence and plaintiff’s

rape with “purely conclusionary allegations that the burglar-rapist would not

have committed the crime had there been ‘adequate lighting’”].)

Saelzler is now the sole exception to this consistent line of authority.

The Saelzler majority not only found “admissible and credible” on the issue of

causation the unsubstantiated, conclusory testimony of the plaintiff’s security

expert, it went further and concluded that such questionable testimony was not

even necessary to establish the plaintiff’s case. (Saelzler v. Advanced Group

400, supra, 77 Cal.App. at pp. 1014-1016.) This is because, according to

Saelzler, the burden is on the defendant to prove the absence of causation in

every case in which the plaintiff presents evidence of “abstract negligence.”

(Id. at p. 1014.) This holding directly contradicts every previous case in

California on this issue.

B. Saelzler Conflicts with This Court’s Recent Decision in

Sharon P. v. Arman, Ltd.

This Court has not yet directly considered what sort of proof it takes to

establish causation in premises liability actions arising from third-party crime.

Very recently, however, in Sharon P. v. Arman, Ltd., supra, 21 Cal.4th 1181,

the Court broached the subject indirectly and expressed its agreement with the

reasoning set forth in the Nola M. line of cases.

In Sharon P., the plaintiff was attacked and sexually assaulted in a

commercial parking garage. (Id. at p. 1185.) She sued the owners of the

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garage, claiming they were negligent in failing to provide security guards,

working security cameras, and sufficiently bright lights on the premises, and

in failing to keep the garage clean to discourage criminal element. (Id. at pp.

1185-1186, 1188-1189.)

The issue presented in Sharon P. involved the garage owners’ duty to

provide the plaintiff’s proposed security measures. In addressing this issue,

this Court commented: “[I]t is difficult to quarrel with the abstract proposition

that the provision of improved lighting and maintenance, operational service

cameras and periodic walk-throughs of the tenant garage owned and operated

by defendants might have diminished the risk of criminal attacks.” (Id. at p.

1199.) Nonetheless, the Court stated that “it is questionable whether [these]

proposed measures would have been effective to protect against the type of

violent assault that occurred here.” (Id. at p. 1196.) The Court noted the

record “contain[ed] no evidence that the security camera at issue was even

aimed toward the area of the parking garage where plaintiff was attacked.

Moreover, surveillance cameras do not deter all crime and criminals do not

confine their activities to locations that are untidy and unkempt.” (Ibid.) The

Court further noted that the record “contain[ed] no evidence [the plaintiff’s]

attacker actually used any of the darkened areas [of the garage] to facilitate his

assault.” (Id. at p. 1197, fn. 5.)

In making these observations, the Court cited with approval Nola M.

and its predecessors for “reject[ing] claims of abstract negligence pertaining

to the lighting and maintenance of property where no connection to the alleged

injury was shown.” (Id. at pp. 1196-1197.)

These comments by the Court in Sharon P. are completely at odds and

cannot be reconciled with Saelzler. Although the Court implicitly

acknowledged Saelzler’s “common sense” assumption that security generally

reduces the probability that crime will occur (id. at p. 1199), the Court also

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recognized this general proposition cannot substitute for the plaintiff’s proof

on the issue of causation in a particular case (id. at pp. 1196-1197). Saelzler

holds precisely the opposite.

C. Saelzler Conflicts with Authority From Other Jurisdictions

Concerning Proof of Causation in the Landowner Liability

Context

Decisions from other jurisdictions concerning proof of causation in

cases involving landlord liability for third-party crime are consistent with the

Nola M. line of cases and with this Court’s comments in Sharon P., and

directly contrary to Saelzler. These authorities require the plaintiff to

affirmatively prove the absence of adequate security substantially contributed

to the occurrence of the particular crime at issue. (See, e.g. Fallon v.

Metropolitan Life Insurance Co. (Ga.Ct.App.1999) 518 S.E.2d 170, 171

[affirming summary judgment for defendant because plaintiff “submitted no

evidence tending to show that a security guard in the common area could have

prevented” the attack]; Kolodziejzak v. Melvin Simon &Associates (Ill.App.Ct.

1997) 685 N.E.2d 985, 991 [reversing jury verdict for plaintiff because

“whether Kolodziejzak’s death could have been prevented by the addition of

another security guard [was] at best speculation and conjecture”]; Pietila v.

Congdon (Minn. 1985) 362 N.W.2d 328, 333 [reversing jury verdict for

plaintiff because no evidence either bodyguards or security alarm system

would have prevented murders]; Pagano v. Mesirow (Mich.Ct.App. 1985) 383

N.W.2d 103, 105 [affirming summary judgment for defendant because no

evidence different lighting or security patrol would have prevented killing];

Goldberg v. Housing Authority (N.J. 1962) 186 A.2d 291, 297 [reversing jury

verdict for plaintiff because of “guessing game [required] to determine

2/ See also Blumenthal v. Cairo Hotel Corp. (D.C. 1969) 256 A.2d 400;Post Properties, Inc. v. Doe (Ga.Ct.App. 1997) 495 S.E.2d 573; Stephens v.Clairmont Center, Inc. (Ga.Ct.App. 1998) 498 S.E.2d 307; N.W. v.Amalgamated Trust & Savings Bank (Ill.App.Ct. 1990) 554 N.E.2d 629; Gantv. Flint-Goodridge Hospital of Dillard University (La.Ct.App. 1978) 359So.2d 279; Rullman v. Fisher (Minn.Ct.App. 1985) 371 N.W.2d 588; Vittenglv. Fox (Mo.Ct.App. 1998) 967 S.W.2d 269; Sakhai v. 411 East 57th StreetCorp. (N.Y.App.Div. 2000) 707 N.Y.S.2d 630; Dawson v. New York CityHousing Authority (N.Y.App.Div. 1994) 610 N.Y.S.2d 28, Pagan v. HamptonHouses, Inc. (N.Y.App.Div. 1992) 589 N.Y.S.2d 471; Clarke v. J.R.D.Management Corp. (N.Y.Civ.Ct. 1983) 461 N.Y.S.2d 168; Kistoo v. City ofNew York (N.Y.App.Div. 1993) 600 N.Y.S.2d 693; Hall v. Fraknoi(N.Y.Civ.Ct. 1972) 330 N.Y.S.2d 637; Carmichael v. Colonial SquareApartments (Ohio Ct.App. 1987) 528 N.E.2d 585; East Texas Theatres, Inc.v. Rutledge (Tex.Ct.App. 1970) 453 S.W.2d 466.

A15

whether some unknown thug of unknowable character and mentality would

have been deterred if the owner had furnished some or some additional

policemen”]; Schwartz v. Niki Trading Corp. (N.Y.App.Div. 1995) 634

N.Y.S.2d 481, 481 [affirming summary judgment for defendant because

“plaintiffs failed to provide any evidence indicating that the person who

attacked plaintiff was an intruder or gained access to the building because of

any lapse in security”].)2/

Moreover, like California in the Nola M. line of cases, other

jurisdictions reject attempts by plaintiffs to satisfy the burden of establishing

causation by presenting security experts who opine, without reliance on any

specific factual support, that additional security measures would have

prevented the crime. (See, e.g. Wright v. New York City Housing Authority

(N.Y.App.Div. 1995) 624 N.Y.S.2d 144 [“affidavit of plaintiff’s expert stating

that the murder would not have occurred if the elevators were working

properly and the stairwells had been properly illuminated consists of bald

conclusions calculated to show fault but is devoid of any evidentiary showing

based on knowledge of the facts”]; Mkrtchyan v. 61st Woodside Associates

3/ Although our search has revealed a very small number of out-of-statecases that seem to apply a more liberal standard of causation than the Nola M.line of cases in premises liability actions based on third party crime (see e.g.,Orlando Executive Park, Inc. v. P.D.R. (Fla.Dist.Ct.App. 1981) 402 So.2d442), no case goes so far as Saelzler to affirmatively relieve the plaintiff ofproducing any evidence on the question of causation. Moreover, the limitedliberalization of the plaintiff’s proof on causation that these few cases allowis contrary to established legal principles and policy considerations, for thereasons discussed infra.

A16

(N.Y.App.Div. 1994) 618 N.Y.S.2d 825 [summary judgment for defendant

proper because “[o]ther than mere speculation in the affidavit of the plaintiffs’

‘security expert,’ there [was] no indication in the record that the absence of a

functioning intercom was a ‘substantial causative factor in the sequence of

events’ that led to the assailant’s presence in the lobby of the building”];

accord Fallon v. Metroplitan Life Insurance Co., supra, 518 S.E.2d at p. 171;

Post Properties, Inc. v. Doe, supra, 495 S.E.2d at pp. 577-578; Vittengl v. Fox,

supra, 967 S.W.2d at pp. 278-282.)

In contrast to these cases, Saelzler permits a plaintiff to meet the burden

of establishing causation based on nothing more than an expert’s opinion, not

tied to any specific facts, that additional security would have prevented the

crime. This is not surprising, because Saelzler also stands for the even more

novel proposition that a plaintiff can establish causation by demonstrating

nothing more than “abstract negligence,” based on the vague “common sense”

notion that security generally reduces the probability that crime will occur.3/

II.

SAELZLER’S APPROACH TO PROVING CAUSATION

VIOLATES ESTABLISHED LEGAL PRINCIPLES AND

POLICY CONSIDERATIONS

A17

A. The “Common Sense” Premise that Security Generally

Reduces Crime Is Insufficient, by Itself, to Satisfy a

Plaintiff’s Burden of Proof on the Issue of Causation

According to Saelzler, “common sense tells judges as well as jurors

security measures – whether they be gates or lights or guards or more

sophisticated approaches – . . . reduce the probability crime will occur at

locations enjoying these protections. Thus, . . . the absence of these measures

is a contributing cause of most crimes that occur on those premises.” (Saelzler

v. Advanced Group 400, supra, 77 Cal.App.4th at p. 1011 [emphasis added].)

Based on this premise, Saelzler holds that whenever a plaintiff establishes

inadequate security was provided at a given location, the necessary causal link

to the crime that occurred is presumed. (Id. at pp. 1011-1014.)

Given what little is known about the workings of the criminal mind, it

is possible to quarrel, in the first instance, with Saelzler’s premise that security

precautions are effective in deterring crime. (See Opening Brief on the Merits,

at pp. 37-39.) But it is not necessary to do so in order to perceive the flaw in

Saelzler’s analysis, and to understand why other cases have not adopted its

rationale. For even if it is true that security measures generally reduce the

probability crime will occur, this premise is insufficient, by itself, to satisfy a

plaintiff’s burden to establish causation to the degree of certainty required by

elemental principles of tort law.

In any negligence action, including premises liability actions arising

from third-party crime, the plaintiff bears the burden to demonstrate the causal

link between the defendant’s negligence and the plaintiff’s injury is more

likely than not. (Prosser & Keeton, Torts (5th ed. 1984) § 41, p. 269.)

“[P]laintiffs cannot recover where there is only a mere possibility the

defendant’s negligence caused the wrong.” (Simmons v. West Covina Medical

A18

Clinic (1989) 212 Cal.App.3d 696, 702, emphasis added; see also Jones v.

Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402-402.) There

must be “‘a reasonably probable causal connection’” between the defendant’s

conduct and the plaintiff’s injury or, in other words, a greater than 50-50

possibility that the defendant’s act or omission substantially contributed to the

harm. (Simmons v. West Covina Medical Clinic, supra, 212 Cal.App.3d at pp.

702-703; see also Prosser & Keeton, supra, § 41 at p. 269 [“A mere possibility

of such causation is not enough; and when the matter remains one of pure

speculation or conjecture, or the probabilities are at best evenly balanced, it

becomes the duty of the court to direct a verdict for the defendant,” emphasis

added, footnotes omitted]; Williams v. Wraxall (1995) 33 Cal.App.4th 120,

133.)

Common sense sometimes indicates a defendant’s negligent act or

omission more likely than not substantiallycontributed to the plaintiff’s injury.

When it does, the plaintiff may satisfy the burden to establish causation based

on that fact alone. (See Prosser & Keeton, supra, § 41 at p. 270 [explaining

that “ordinary experience” and “common knowledge” may provide the basis

for showing causation].) But if common sense only suggests the defendant’s

negligence increased by some unknown degree the likelihood that the plaintiff

would be injured, something more in the way of proof is required to establish

causation.

So, for example, common sense tells us that properly operating seat

belts reduce the likelihood of serious injury resulting from automobile

accidents. But this does not mean that, in every case where a defectively

designed seat belt ruptures during impact, the seat belt manufacturer is

responsible for the plaintiff’s injuries, or even for enhancement of the

plaintiff’s injuries. Rather, the plaintiff bears the burden of establishing, based

on the specific facts of the case, that he would not have sustained the degree

A19

of injury that occurred if the seat belt had operated properly. (See Endicott v.

Nissan Motor Corp. (1977) 73 Cal.App.3d 917, 927.)

Similarly, common experience also tells us early detection of cancer

increases the likelihood of survival. Yet, a doctor who negligently fails to

diagnose cancer in a patient is not necessarily responsible for the patient’s

subsequent, cancer-related death. The plaintiff still bears the burden to show

that, absent the doctor’s negligence, this particular patient probably would

have beaten the disease and lived. (See Bromme v. Pavitt (1992) 5

Cal.App.4th 1487, 1499; Dumas v. Cooney (1991) 235 Cal.App.3d 1593,

1603.)

When the subject is deterrence of crime, common sense only goes so

far. “‘No one really knows why people commit crime’” and, therefore, no one

knows how effectively security measures prevent it. (Ann M. v. Pacific Plaza

Shopping Center, supra, 6 Cal.4th at p. 679, quoting 7735 Hollywood Blvd.

Venture v. Superior Court (1981) 116 Cal.App.3d 901, 905.) Common sense

may arguably suggest that added security measures reduce crime to some

extent. But it is impossible to conclude, based on common sense alone and

without reliance on any concrete facts, that a particular security precaution

more likely than not would have prevented a particular crime, i.e., would have

reduced the chance of the crime occurring by more than 50 percent. Yet that

is precisely what a plaintiff must show to satisfy the burden of proving “a

reasonably probable causal connection” between the absence of additional

security precautions and the actual crime that occurred. (See Simmons v. West

Covina Medical Clinic, supra, 212 Cal.App.3d at pp. 702-703 [“A less than

50-50 possibility that defendants’ omission caused the harm does not meet the

requisite reasonable medical probability test of proximate cause”]; accord

Williams v. Wraxall, supra, 33 Cal.App.4th at p. 133.) To satisfy the burden

to prove causation, the plaintiff therefore cannot rely solely on common sense;

4/ For example, fingerprint analysis might create a reasonable basis toconclude the perpetrator of the crime entered the property through a brokendoor (see Leslie G. v. Perry & Associates, supra, 43 Cal.App.4th at p. 488, fn.8 ), or other evidence might show the broken door was the only feasible meansof entry. (See Brewster v. Prince Apartments, Inc. (N.Y.App.Div. 1999) 695N.Y.S.2d 315, 318-319.) Or, there may be evidence the plaintiff’s proposedsecurity precautions deterred the assailant from committing crimes at otherlocations (See Dickinson Arms-Reo, L.P. v. Campbell (Tex.Ct.App.1999) 4S.W.3d 333, 349.) There are myriad other ways for plaintiffs to provecausation, depending on the facts of the particular case. (See Leslie G. v.Perry & Associates, supra, 43 Cal.App.4th at p. 488, fn. 8; see also Roettgerv. United Hospitals of St. Paul, Inc. (Minn.Ct.App. 1986) 380 N.W.2d 856,861, 862 (assailant was openly present in hospital lounge area for extendedperiod, with liquor on his breath, pacing, smoking cigarettes, and disturbinghospital visitors, but was not ejected by hospital security); Walker v. St. PaulApartments, Inc. (Ga.Ct.App. 1997) 489 S.E.2d 317 (assailant entered throughunlocked door while security guard was away from post; defendants failed toprovide guard with key to lock door despite repeated requests); Mayer v.Housing Authority (N.J.Super.Ct.App.Div. 1964) 202 A.2d 439 (althoughidentity of person who threw stone that injured plaintiff was unknown,evidence showed defendant had knowledge of stone-throwing by children inplayground area for 11 months prior to the incident, incident occurred duringtime when children would be expected to make use of playground, and guards(who were not on duty at the time of the incident) previously stopped childrenfrom “fooling around” there); Lincoln Property Co. v. DeShazo (Tex.Ct.App.1999) 4 S.W.3d 55 (evidence showed one security guard could not single-handedly control size of crowd that regularly gathered in defendant’s parkinglot on “college nights”); Virginia D. v. Madesco Investment Corp. (Mo. 1983)648 S.W.2d 881 (security guard or television monitor in empty lower lobbyarea of hotel would have substantially increased probability that male assailantwould have been noticed as he entered ladies’ room).

A20

rather, the plaintiff must present case-specific facts demonstrating a causal

connection between the absent security measure and a particular crime.4/

Saelzler wrongly assumes that because security arguably deters some

crime, inadequate security substantially contributes to the occurrence of most

crime. (See Saelzler v. Advanced Group 400, supra, 77 Cal.App.4th at p. 1011,

1014.) In doing so, Saelzler effectively adopts a relaxed standard of causation

that permits plaintiffs to prevail in premises liability actions when causation

A21

is merely possible. This result directly contradicts established tort principles

and should not be sanctioned by this Court.

B. An Expert’s Unsupported Hindsight Opinion About the

Deterrent Effect of Recommended Security Measures

Cannot Create a Triable Issue of Fact on Causation

Although the Saelzler majority found “common sense” sufficient to

create a triable issue of fact on causation, in an alternative holding the majority

also found the testimony of plaintiff’s security expert “admissible and

credible” on the issue. (Saelzler v. Advanced Group 400, supra, 77

Cal.App.4th at p. 1016.) Plaintiff’s expert testified, without any factual

support, “that this attack, assault and battery, and attempted rape on the

plaintiff would not have occurred had there been daytime security and a more

concerted effort to keep the gates repaired and closed. . . . It is my opinion that

the premises were a haven for gangsters and hoodlums which further

encouraged criminal activity as evidence [sic] by the long history of criminal

activity in the only one year prior to this incident.” (Id. at pp. 1005-1006.) In

sanctioning this testimonybyplaintiff’s expert, the Saelzler majorityneglected

to so much as mention the long line of authority from this and other

jurisdictions finding similar, conclusory testimony entirely speculative and

therefore inadequate to prove causation. (See section I, at pp. 5-11, ante.)

It is settled law that an expert’s opinion must be based on established

facts; “[w]here an expert bases his conclusion upon . . . factors which are

speculative, remote or conjectural, . . . the expert’s opinion cannot rise to the

dignity of substantial evidence.” (Pacific Gas & Electric Co. v. Zuckerman

(1987) 189 Cal.App.3d 1113, 1135.) Saelzler’s holding flies in the face of this

fundamental legal principle. It creates a dangerous precedent permitting

A22

plaintiffs to prevail in premises liability cases based on unsupported, hindsight

opinions of partisan “security experts” who opine without any factual basis

that whatever security measures the defendant did not have in place would

have prevented the particular crime that occurred. This type of inherently

speculative and unreliable testimony cannot be accorded the status of actual

evidence adequate to create a triable issue on causation.

C. There Is No Legitimate Basis For Shifting to Defendant

Landowners the Burden to Disprove Causation

Saelzler holds that a plaintiff in a premises liability action based on a

third-party’s crime need not produce evidence to prove the connection between

the defendant’s conduct and the plaintiff’s injury is “more likely than not.”

Under Saelzler, once the plaintiff establishes inadequate securitywas provided

(in other words, duty and breach), the burden shifts to the defendant to

disprove the element of causation – that is, the defendant must prove the

particular crime perpetrated against the plaintiff would have happened even if

proper security measures, as defined by plaintiff’s expert, were in place.

(Saelzler v. Advanced Group 400, supra, 77 Cal.App.4th at p. 1014.)

In negligence actions, the plaintiff typically bears the burden to prove

causation. (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 968;

Lineaweaver v. Plant Insulation Co. (1995) 31 Cal.App.4th 1409, 1415;

Prosser & Keeton, supra, § 41 at p. 269; Rest.2d Torts, §433B.) Under very

limited circumstances, for public policy reasons, the burden on the issue of

causation may be shifted to the defendant. (Prosser & Keeton, supra, § 41 at

pp. 270-271; Rest.2d Torts §433B.) However, shifting the burden of proof on

causation constitutes a “fundamental departure” from general tort principles,

and can only be justified under particular, unusual and recognized

5/ The classic example of this “alternative liability” situation is the caseof Summers v. Tice (1948) 33 Cal.2d 80. (See Sindell v. Abbott Laboratories(1980) 26 Cal.3d 588, 598; Lineaweaver v. Plant Insulation Co., supra, 31Cal.App.4th at p. 1417.) There, the plaintiff was injured by a single shot whilehunting with two companions who each negligently fired their shotguns in hisdirection at about the same time. (Summers v. Tice, supra, 33 Cal.2d at pp. 82-83.) One of the defendants was clearly the cause of the plaintiff’s injury, butit was impossible for the plaintiff to prove which one.

A23

circumstances. (Rutherford v. Owens-Illinois, Inc., supra, 16 Cal.4th at p.

969.) Premises liability actions based on third-party crime do not fall under

any category of cases where burden-shifting on the causation question has

been allowed.

For example, a shift in the burden of proof is proper “[w]here the

conduct of two or more actors is tortious, and it is proved that harm has been

caused to the plaintiff by only one of them, but there is uncertainty as to which

one has caused it.”5/ (Rest.2d Torts, §433B, emphasis added; See also Prosser

& Keeton, supra, § 41 at p. 271; Sindell v. Abbott Laboratories, supra, 26

Cal.3d at p. 598; Rutherford v. Owens-Illinois, Inc., supra, 16 Cal.4th at pp.

970-71.) This “alternative liability” situation justifies deviation from the usual

allocation of the burden of proof because of “the injustice of permitting proved

wrongdoers, who among them have inflicted injury upon the entirely innocent

plaintiff, to escape liability merely because the nature of their conduct and the

resulting harm has made it difficult or impossible to prove which of them has

caused the harm.” (Rest.2d Torts, §433B, com. f, p. 446.) This “alternative

liability” principle has no application to actions involving premises liability for

third-party crime, where the plaintiff necessarily claims both the criminal and

the property owner are responsible, but in different ways, for the plaintiff’s

injury.

Another principle permitting a shift in the burden of proof on causation,

and the only one on which plaintiff here relies (see Answer Brief on the Merits

A24

at pp. 36-37), was first enunciated in the celebrated case of Haft v. Lone Palm

Hotel (1970) 3 Cal.3d 756. In Haft, a father and son drowned in a motel pool

where, in violation of law, no lifeguard was provided. There were no

witnesses, so it was impossible for the plaintiff to adduce definitive evidence

on the manner in which the drownings occurred, or to establish whether a

lifeguard could have prevented them. Nonetheless, the “chances of a

successful rescue [were] very high.” (Id. at p. 772, fn. 18.) The motel pool

was very small, and the decedents were the only two persons in the entire pool

area when the drownings occurred, so “a reasonably attentive lifeguard would

without doubt have been aware of their activities at the moment that the . . .

emergency arose.” (Ibid.) Recognizing the motel’s conduct created the

“evidentiary void” on the issue of causation (because a lifeguard, if he did not

rescue the decedents, at least would have witnessed the accident), the Haft

court shifted the burden of proof to the defendant to prove a lifeguard would

not have averted the tragedy. (Id. at pp. 771, 773.) The court explained:

[T]he shift of the burden of proof . . . may be said to rest on apolicy judgment that when there is a substantial probability thata defendant’s negligence was a cause of an accident, and whenthe defendant’s negligence makes it impossible, as a practicalmatter, for plaintiff to prove “proximate causation”conclusively, it is more appropriate to hold the defendant liablethan to deny an innocent plaintiff recovery, unless the defendantcan prove that his negligence was not a cause of the injury.

(Id. at p. 774, fn. 19, emphasis added, final emphasis in original.)

The Haft doctrine is not generally applicable to premises liability

actions based on third-party crime. In fact, Haft does not apply under the facts

of Saelzler itself.

Under Haft, a plaintiff must establish a “prima facie” case or

“substantial probability” of causation as a condition precedent to a shift in the

burden of proof. (Thomas v. Lusk (1994) 27 Cal.App.4th 1709, 1719;

A25

Williams v. Wraxall, supra, 33 Cal.App.4th at p. 137; see also Endicott v.

Nissan Motor Corp., supra, 73 Cal.App.3d at pp. 927-928 [refusing to apply

Haft because it was “pure speculation to assume that differently designed seat

belts would have prevented plaintiff’s injuries”]; Simmons v. West Covina

Medical Center, supra, 212 Cal.App.3d at p. 703 [finding Haft inapplicable

because the evidence did not establish a “reasonable degree of medical

probability” plaintiff would have obtained a different result absent defendant’s

medical negligence]; Smith v. Americania Motor Lodge (1974) 39 Cal.App.3d

1, 6 [distinguishing Haft where it was “fully as logical that the [drowning]

deaths were caused by the [decedents’] mere inability to swim as by the fact

that the [statutorily required safety rope] was missing [from the pool]”]; Jones

v. Ortho Pharmaceutical Corp., supra, 163 Cal.App.3d at p. 405 [explaining

the Haft rationale “is in reality merely an extension of the doctrine of res ipsa

loquitur”].)

The plaintiff in Saelzler did not make this threshold showing. There

was no evidence, much less a substantial probability, that gates with working

locks would have kept the perpetrators out of the defendants’ apartment

complex and thereby prevented the attack, for it was just as likely the

perpetrators were residents of the complex, or guests of residents, as intruders.

(Saelzler v. Advanced Group 400, supra, 77 Cal.App.4th at p. 1016 (dis. opn.

of Neal, J.).) Similarly, there was no evidence addition of daytime security

guards would have prevented the attack. (Id. at p. 1016 (dis. opn. of Neal, J.).)

“A 300-unit, 28-building apartment complex contains many rooms, halls,

entries, garages, and other spaces where a rape could take place despite

extensive security patrols.” (Id. (dis. opn. of Neal, J.) .) Indeed, the evidence

showed the defendants did provide night-time security patrols on the property,

but crime continued to occur despite this precaution. (Ibid. (dis. opn. of Neal,

J.).) And, while locked gates and additional security patrols might have

A26

lessened by some unknown extent the general probability of criminal activity

on the property, there was no evidence these precautions would have decreased

crime by more than 50 percent, so as to render the necessary causal link to the

attack on the plaintiff more likely than not. (Ibid. (dis. opn. of Neal, J.).)

Moreover, the Haft rule applies only when the defendant’s negligence

creates an “evidentiary void” on the issue of causation and makes proof of

causation impossible for the plaintiff as a practical matter, or when the

defendant has greater access to evidence pertaining to causation because the

instrumentality that caused the injury is within his control. (Haft v. Lone Palm

Hotel, supra, 3 Cal.3d at pp. 771-73; Jones v. Ortho Pharmaceutical Corp.,

supra, 163 Cal.App.3d at p. 405; Endicott v. Nissan Motor Corp., supra, 73

Cal.App.3d at p. 928; Williams v. Wraxall, supra, 33 Cal.App.4th at p. 136;

Smith v. Americania Motor Lodge, supra, 39 Cal.App.3d at pp. 6-7; Thomas

v. Lusk, supra, 27 Cal.App.4th at p. 1720.)

In Saelzler, the defendants obviously did not control the instrumentality

that caused the plaintiff’s injury – the unknown assailants – nor did the

defendants have any better access than the plaintiff to information concerning

the identities of the assailants, how they came upon the property, or what might

have deterred then from committing the crime. Moreover, the “evidentiary

void” on the issue of causation was not caused by the defendants’ failure to

provide adequate security. Unlike the absence of a lifeguard in Haft, the

absence of working locks on the apartment complex’s perimeter gates did not

make it more difficult for the plaintiff to prove her case. Nor did the failure

to provide more security patrols impede the plaintiff’s case, since it was pure

speculation whether a security guard patrolling the 28-building, 300-unit

apartment complex would have happened to witness the attack.

Finally, proof of causation was not “impossible.” For example, instead

of relying on a conclusory “expert” opinion based on nothing more than the

6/ Other premises liability cases demonstrate there are myriad additionalways for plaintiffs to establish causation based on specific evidentiary facts.(See, e.g., cases discussed at p. 15, fn. 4, ante. See also Center ManagementCorp. v. Bowman (Ind.Ct.App. 1988) 526 N.E.2d 228, 230-231.)

A27

general proposition that increased security would have made the property

safer, the plaintiff might have presented expert testimony based on a statistical

comparison of the crime rate at the defendants’ apartment complex with the

crime rates at other complexes of similar size, in comparable neighborhoods,

that have in place the type and level of security plaintiff claimed the

defendants should have provided. If the statistics showed the properly secured

location experienced over 50 percent fewer crimes than the defendants’

apartment complex, that would have been sufficient to get the case to a jury.6/

Undoubtedly, proving causation under the facts of Saelzler would have

been difficult, and it likely is not easy to prove causation in some other

premises liability actions based on third-party crime. But that is simply a

function of the tenuous connection between added security measures and

crime, and it does not justify shifting the burden of proof on the causation

question to the defendant. Indeed, when a plaintiff seeks to recover from a

defendant for injuries suffered at the hands of another person over whom the

defendant had no control, it is appropriate that proof of causation be difficult.

(See Lineaweaver v. Plant Insulation Co., supra, 31 Cal.App.4th at p. 1418

[“We recognize that plaintiffs sometimes have difficulty in proving causation

. . . and are not insensitive to their claims that it would be unfair to deny them

a remedy for the wrong inflicted upon them. But . . . it serves no justice to

fashion rules which . . . demand[] [defendants] to compensate a loss they did

not create”].) Moreover, “[t]he fact that a determination of causation is

difficult to establish cannot . . . provide a plaintiff with an excuse to dispense

with the introduction of some reasonably reliable evidence proving this

essential element of his case.” (Jones v. Ortho Pharmaceutical, Corp., supra,

A28

163 Cal.App.3d at p. 403.) “Difficult” is not the same is “impossible,” and

Haft only permits a shift in the burden when causation is impossible for the

plaintiff to prove because of some action or inaction on the part of the

defendant.

This Court has stated that, “in the absence of a compelling need for

shifting the burden [of proof on the issue of causation], it should remain with

the plaintiff.” (Rutherford v. Owens-Illinois, Inc., supra, 16 Cal.4th at p. 977.)

The Saelzler majority ignored this pronouncement when it placed on defendant

property owners the burden to disprove causation, despite the absence of any

legal authority supporting a burden shift in the premises liability context.

Reversal of Saelzler is necessary to correct the majority’s error.

D. Public Policy Demands that Plaintiffs in Premises Liability

Actions Based on Third-Party Crime Affirmatively

Demonstrate Causation.

Today, there is no question that landowners in California have a duty

“to take reasonable steps to secure common areas against foreseeable criminal

acts of third parties that are likely to occur in the absence of such precautionary

measures.” (Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th at p.

674.) It also is unquestionable, however, that “in this day of an inordinate

volume of criminal activity, . . . [a]nyone can foresee that a crime may be

committed anywhere at any time.” (7735 Hollywood Blvd. Venture v.

Superior Court, supra, 116 Cal.App.3d at pp. 905-906; see also Ann M. v.

Pacific Plaza Shopping Center, supra, 6 Cal.4th at p. 678 [“Unfortunately,

random, violent crime is endemic in today’s society. It is difficult, if not

impossible, to envision any locale open to the public where the occurrence of

violent crime seems improbable”].) What’s more, “[n]o one really knows why

A29

people commit crime, hence no one knows what is ‘adequate’ deterrence in

any given situation.” (Ann M. v. Pacific Plaza Shopping Center, supra, 6

Cal.4th at p. 679, quoting 7735 Hollywood Blvd. Venture v. Superior Court,

supra, 116 Cal.App.3d at p. 905.)

Given all this, discharging the duty to reasonably secure their property

against crime is no easy task for landowners. It is often a guessing game to

determine in advance what measures will suffice. Even worse, crime

inevitably continues to occur notwithstanding the implementation of security

precautions. (See 7735 Hollywood Blvd. Venture v. Superior Court, supra,

116 Cal.App.3d at p. 905 [“While [security measures] may deter some, they

will not deter all. Some persons cannot be deterred by anything short of

impenetrable walls and armed guards ”]; Noble v. Los Angeles Dodgers, Inc.,

supra, 168 Cal.App.3d at p. 918 [“No one can reasonably contend that even

a significant increase in police personnel will prevent all crime or any

particular crime”]; Goldberg v. Housing Authority, supra, 186 A.2d at p. 297

[noting the “extraordinary speculation inherent in the subject of deterrence of

men bent upon criminal ventures” and that “police protection does not, and

cannot, provide assurance against all criminal attacks, . . . so the topic

presupposes that inevitably crimes will be committed notwithstanding the

sufficiency of the force”]; Pietila v. Congdon, supra, 362 N.W.2d at p. 334

[“That a skilled and dedicated troop of bodyguards equipped with the most

sophisticated weaponry and electronic devices does not always restrain even

one man bent on murder is all too familiar to a generation which has witnessed

the assassination of one United States president and the near fatal shooting of

another”].)

Consequently, even responsible landowners who go to great lengths to

meet their duty to secure their property face the specter of a lawsuit whenever

a criminal finds a way to elude their defenses. In retrospect, with the benefit

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of hindsight, it is always possible a lay jury will determine the security

precautions these property owners had in place were “inadequate.” There will

virtually always be a “security expert” willing to offer such testimony, and to

hypothesize about additional securitymeasures the propertyowners could have

taken. (See Noble v. Los Angeles Dodgers, Inc., supra, 168 Cal.App.3d at p.

916 [recognizing a troublesome “growth industry is developing consisting of

experts who will advise and testify as to what, in their opinion, constitutes

‘adequate security’”].) Moreover, “[t]he mere fact that a crime has occurred

almost always allows one to draw the conclusion, after the fact, that the

premises were inherently dangerous.” (Sharon P. v. Arman, Ltd., supra, 21

Cal.4th at p. 1194, quoting Kaufman, When Crime Pays: Business Landlords’

Duty to Protect Customers from Criminal Acts Committed on the Premises

(1990) 31 S. Tex. L.Rev. 89, 112-113, fns. omitted.)

Therefore, “causation is a critical question” in premises liability actions

based on third-party crime, and it is important to hold plaintiffs strictly to their

proof on this issue. (Noble v. Los Angeles Dodgers, Inc., supra, 168

Cal.App.3d at p. 917.) The Saelzler majority opinion ignores this, exposing

landowners to liability even when there is no evidence any lapse in security

had anything to do with facilitating the crime against the plaintiff. In doing so,

Saelzler makes landowners virtual insurers of the absolute safety of others on

their property, contrary to “well-established policy in this state.” (Ann M. v.

Pacific Plaza Shopping Center, supra, 6 Cal.4th at p. 679.) This Court should

reverse Saelzler to avoid creating a new and unfair rule that, in essence, makes

landowners strictly liable for all crimes perpetrated by others on their property.

CONCLUSION

The Saelzler majority opinion is based on false assumptions and faulty

legal reasoning. The new causation test it announces threatens to profoundly

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impact property owners who already have gone to great lengths to protect their

property, exposing such owners to liability whenever a person intent upon

committing crime finds a way to circumvent the property owner’s defenses.

In order to protect the “well-established policy in this state” that landowners

are not insurers of the safety of others on their property (Ann M. v. Pacific

Plaza Shopping Center, supra, 6 Cal.4th at p. 679), this Court should reverse

Saelzler and confirm the continued vitality of the Nola M. line of cases that

Saelzler rejects.